Filed 11/30/15 Rosales v. Moneytree, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SARA ROSALES,

 Plaintiff and Appellant,

v.

MONEYTREE, INC.,

 Defendant and Respondent.

 G052224

 (Super. Ct. No. RIC1213948)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, David 

E. Gregory, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Mancini & Associates, Marcus A. Mancini, Timothy J. Gonzales; Benedon 

& Serlin, Gerald Serlin and Kelly R. Horwitz for Plaintiff and Appellant.

Curiale Wilson, Richard J. Curiale, Michelle T. Duval and Joseph C. 

Wilson for Defendant and Respondent.

* * *
2

Plaintiff and appellant Sara Rosales appeals from the summary judgment 

entered in favor of her former employer, defendant and respondent Moneytree, Inc. 

(Moneytree). Rosales sued Moneytree, alleging it unlawfully discriminated against her 

based on her repeated need for domestic violence leave. Moneytree moved for summary 

judgment on the ground it granted every leave request Rosales made, and terminated her 

employment for the nondiscriminatory reason that its investigation into stolen bus passes 

from the branch where Rosales worked led it to conclude Rosales was untruthful with the 

investigator and was the likely culprit. The trial court granted the motion, finding 

Moneytree presented evidence showing it terminated Rosales based on the missing bus 

passes and the evidence Rosales presented failed to create a triable issue on whether 

Moneytree acted with discriminatory animus or whether Moneytree’s stated reason for 

terminating Rosales was a pretext for unlawful discrimination. We agree and affirm the 

judgment.

I

FACTS AND PROCEDURAL HISTORY

Moneytree is a national, retail financial services company that offers shortterm loans, check cashing, and wire transfers. It also sells stamps and public transit 

system passes. Moneytree is headquartered in Seattle, Washington, and has stores in five 

states. 

In 2007, Moneytree hired Rosales as a vault teller to work in its Riverside 

branch, which was a small store staffed by four to five employees located inside a 

supermarket. As a vault teller, Rosales had access to the vault and would provide cash 

and inventory to the regular tellers who interacted with the customers. Usually, two vault 

tellers worked each shift, but one was designated as the on-duty vault teller and only that 

teller had the vault key during the shift. The other vault teller would work with the 

regular tellers and the public. There were two shifts each day. At the start of each shift, 
3

the on-duty vault teller was responsible for verifying and balancing the vault’s contents 

by “fine counting” each bundle of cash, bus passes, stamps, and other inventory to verify 

they were complete. 

From 2008 to March 2011, Brenda Avila was Rosales’s branch manager. 

When Avila transferred to another branch, Jose Hernandez became Rosales’s branch 

manager. Moneytree’s branch managers lacked authority to either hire or fire employees. 

They reported to a district manager, who hired the employees, and oversaw employee 

performance issues and scheduling. The Seattle office was responsible for terminating 

employees based on input from the local branch and district managers. Ruby Candido 

was the manager for the district that included the Riverside branch. 

When Rosales worked for Avila, her performance reviews reflected that she 

generally met expectations. Rosales received regular raises, but Avila also counseled her

on more than 25 occasions for tardiness or failing to show up, exhibiting a bad attitude, 

and having an unprofessional appearance. Rosales also was the subject of customer 

service complaints, and Avila noted Rosales had refused to train a coworker, and that 

Rosales sometimes failed to balance either her drawer or the vault following her shift. 

In 2009, Rosales first became a domestic violence victim when her 

boyfriend threw an object at her. Additional incidents followed and Rosales often 

appeared at work with scratches or bruises. Avila, aware of these incidents, provided 

Rosales with makeup to hide her bruises, and asked her to wear blazers or otherwise 

cover up any scratches or bruises so customers would not see them. Rosales’s boyfriend 

would call or come to the branch and engage in heated arguments with her. These 

arguments made other employees uncomfortable prompting Avila to ask Rosales to tell 

her boyfriend not to come in or call unless it was an emergency. 

In April 2010, Rosales called Avila and said she could not come to work 

because she had a black eye and swollen nose after her boyfriend assaulted her. After 

speaking with Candido, Avila told Rosales she could skip work and wished her a speedy 
4

recovery. Moneytree excused Rosales’s absence as domestic violence leave and she

suffered no negative employment actions as a result. Rosales recovered and worked her 

next regularly scheduled shift. When Rosales returned to work Avila advised her about 

Moneytree’s employee assistance program and explained it provided confidential 

counseling and other resources for domestic violence victims. Avila also gave Rosales a 

brochure describing the program. 

In October 2010, Moneytree placed a verbal warning in Rosales’s 

personnel filed for “Attendance,” “Punctuality,” and “Balancing.” Rosales was late for 

work, and on a few occasions did not show up at all. Moneytree’s warning also was 

triggered by a series of shortages in Rosales’s drawer or the vault at the end of her shift, 

the most recent incident resulting in an unexplained shortage that exceeded $400. 

In June 2011, Rosales asked for domestic violence leave, informing 

Candido she could not report to work because she had to attend a court hearing 

concerning to her boyfriend’s physical abuse. When Rosales returned to work for her 

next scheduled shift, Candido questioned her about the nature of the court hearing and the 

situation with her boyfriend so he could excuse her absence as domestic violence leave. 

Based on Rosales’s response, Candido classified her absence as domestic violence leave 

and she suffered no negative employment action. When she was later deposed in the 

action, Candido testified this conversation left her feeling “very strongly [Rosales] was 

trying to get [her boyfriend] out of jail and not really trying to separate herself from the 

domestic violence at that time.” 

In July 2011, Moneytree hired an independent firm to send customers into 

its branches and evaluate its employees. Rosales helped one of these customers and 

received the lowest customer service score possible, one on a scale of one to five. Under 

Moneytree’s policies, the evaluation provided grounds to immediately terminate Rosales, 

but Hernandez and Candido convinced their superiors that she was capable of good 

customer service and should be given another opportunity. Instead of being terminated, 
5

Rosales received a written warning that any failure to improve could result in immediate 

termination. 

In August 2011, Rosales sought her third domestic violence leave, 

informing Hernandez she was not physically presentable because her boyfriend assulated 

her with a phone and injured her face. Rosales’s doctor wrote a note excusing her from 

work because she needed five days to recover from her injuries. Moneytree again 

classified Rosales’s absences as excused based on domestic violence leave and she 

suffered no negative employment action. When Rosales returned to work Hernandez 

discussed the situation with her, explaining, “Sara[], you can’t be doing this. You need to 

move on with your life [¶] . . . [¶] [You] can do better. [You’re] too good for that.” 

Rosales acknowledged Hernandez was trying to be supportive, but his comments 

nonetheless hurt her feelings because he did not understand her situation. 

In documenting this incident, Candido noted Rosales continued to live with 

her boyfriend, did not report the incident to the police, and was not completely truthful in 

discussing the matter with her doctor. Candido also reminded Rosales about Moneytree’s

confidential employee assistance program and advised her that future missed time could 

affect her attendance record. 

Two weeks later, another vault teller reported several bus passes were 

missing when he performed the fine count at the start of his afternoon shift. He explained

the vault had the correct number of bundles of bus passes, but several of the bundles were 

missing one pass. He reported the missing passes to Hernandez, who confirmed the 

number of missing passes before notifying Candido. Candido reviewed the records and 

other documentation to see if there was an innocent explanation for the missing passes, 

but concluded they had been stolen because there was no other explanation. Candido 

reported the stolen passes to Moneytree’s Vice President of Operations Lora Riemann 

and Chief Operating Office Christine Kiely. 
6

With help from assistant district manager Alba Myers, Candido conducted

an investigation into who stole the bus passes. They interviewed every employee who 

had access to the vault at the Riverside branch, including the vault tellers and Hernandez. 

They also interviewed Milissa Garcia, a regular teller who received one of the short 

bundles of bus passes on the same day the missing passes were discovered. Candido and 

Myers assessed each employee’s responses to their questions and also their reactions to 

the investigation. 

Rosales’s interview stood out to both Candido and Myers because she 

reacted differently than when she was questioned about other shortages or problems in 

the past. Rosales would not maintain eye contact with Candido, and she repeatedly 

denied taking the passes and kept talking for several minutes, insisting she would never 

jeopardize her job. As part of the investigation, Candido also reviewed the vault teller 

schedule and the sequencing of their shifts to determine the optimal time to take the 

passes and who had the best opportunity to do it while escaping suspicion. 

Throughout the four-day investigation, Candido repeatedly discussed each 

interview with Riemann. Candido wanted to make sure she collected all the information 

Riemann and Kiely would need to determine how to proceed. When she completed her 

investigation, Candido submitted an investigative report summarizing her findings and 

conclusions. After reviewing all the information Candido provided, discussing the matter 

with Candido, and debating among themselves, Riemann and Kiely concluded Rosales 

likely was the person who took the passes. Based on Moneytree’s zero tolerance policy 

for theft, Riemann and Kiely decided to terminate Rosales’s employment. 

Moneytree terminated Rosales’s employment in late September 2011. In 

the termination notice she sent Rosales, Candido explained, “Regrettably, throughout our 

conversation [during the investigation], I do not believe you gave complete and truthful 

answers to the questions asked and found the testimony of other witnesses to be more 

forthright and believable. And, while you repeatedly denied benefitting from the missing 
7

passes or any wrongdoing, you were unable to provide me with any satisfactory answers 

as to what happened to the passes. [¶] Sarah, the conclusion I reached, after completing 

my investigation, was that you misappropriated the 7 bus passes totaling $242 from 

Moneytree. Based upon this, I determined that the best course of action was to terminate 

your employment with Moneytree.” 

Rosales sued Moneytree approximately a year later, alleging claims for 

violation of Labor Code section 230.1 and wrongful termination in violation of public 

policy. She alleged Moneytree unlawfully discriminated against and terminated her for 

taking domestic violence leaves. Moneytree moved for summary judgment on Rosales’s 

claims, arguing it fired her for the legitimate nondiscriminatory reason that she was 

untruthful during the investigation and stole the bus passes. The trial court granted the 

motion, finding Moneytree met its initial burden and Rosales failed to present sufficient 

evidence to create a triable issue of fact on whether Moneytree’s stated reason for firing 

her was a pretext for discrimination or whether Moneytree otherwise acted with a 

discriminatory motive. This appeal followed.

II

DISCUSSION

A. California’s Prohibition Against Employment Discrimination for Victims of 

Domestic Violence

Victims of domestic violence are not a protected class under the California 

Fair Employment and Housing Act (Gov. Code, § 12940 et seq.). (See Gov. Code, 

§ 12940, subd. (a) [identifying protected classes].) Nonetheless, the California Labor 

Code provides employees certain protections when they need time off from work to 

address issues arising from domestic violence. (See Lab. Code, §§ 230, 230.1.)

Labor Code section 230.1 prohibits an employer of 25 or more employees 

from “discharg[ing] or in any manner discriminat[ing] or retaliat[ing] against an 
8

employee who is a victim of domestic violence, sexual assault, or stalking for taking time 

off from work to attend to any of the following: [¶] (1) To seek medical attention for 

injuries caused by domestic violence, sexual assault, or stalking. [¶] (2) To obtain 

services from a domestic violence shelter, program, or rape crisis center as a result of 

domestic violence, sexual assault, or stalking. [¶] (3) To obtain psychological 

counseling related to an experience of domestic violence, sexual assault, or stalking. [¶] 

(4) To participate in safety planning and take other actions to increase safety from future 

domestic violence, sexual assault, or stalking, including temporary or permanent 

relocation.” (Lab. Code, § 230.1, subd. (a).)

Labor Code section 230, subdivision (c), prohibits any employer from 

“discharg[ing] or in any manner discriminat[ing] or retaliat[ing] against an employee who 

is a victim of domestic violence, sexual assault, or stalking for taking time off from work 

to obtain or attempt to obtain any relief, including, but not limited to, a temporary 

restraining order, restraining order, or other injunctive relief, to help ensure the health, 

safety, or welfare of the victim or his or her child.” (Lab. Code, § 230, subd. (c).)

Both of these sections further provide that any employee who is 

“discharged, threatened with discharge, demoted, suspended, or in any other manner 

discriminated or retaliated against in the terms and conditions of employment” for 

exercising the employee’s rights under these sections is entitled to “reinstatement and 

reimbursement for lost wages and work benefits caused by the acts of the employer, as 

well as appropriate equitable relief.” (Lab. Code, §§ 230, subd. (g)(2), 230.1, subd. (c).)

The elements of a discrimination or wrongful termination claim under 

either of these statutes are the following: (1) the employer terminated the employee or 

otherwise discriminated or retaliated against the employee in the terms and conditions of 

employment; and (2) the employer’s conduct was motivated by the employee taking time 
9

off to invoke any of the remedial steps identified in the statutes.1 (Deschene v. Pinole 

Points Steel Co. (1999) 76 Cal.App.4th 33, 41-42 (Deschene) [applying Labor Code 

§ 230].) Here, Rosales alleges a claim under Labor Code section 230.1.

B. Governing Legal Principles for Summary Judgment Motions on Employment 

Discrimination Claims

Claims alleging unlawful employment discrimination or retaliation may be 

established through either direct or circumstantial evidence. (Mokler v. County of 

Orange (2007) 157 Cal.App.4th 121, 138 (Mokler); Morgan v. Regents of University of 

California (2000) 88 Cal.App.4th 52, 67 (Morgan).) “‘“Direct evidence is evidence 

which, if believed, proves the fact [of discriminatory animus] without inference or 

presumption.”’ [Citation.] Where a plaintiff offers direct evidence of discrimination that 

is believed by the trier of fact, the defendant can avoid liability only by proving the 

plaintiff would have been subjected to the same employment decision without reference 

to the unlawful factor.” (Morgan, at pp. 67-68.)

 

1 Neither the parties nor the trial court address whether Labor Code 

sections 230 and 230.1 create a private right of action. Although the statutes state an 

employee is entitled to reinstatement, reimbursement, and appropriate equitable relief, 

they do not expressly authorize a civil action to obtain those remedies. Instead, both 

statutes provided an employee “may file a complaint with the Division of Labor 

Standards Enforcement of the Department of Industrial Relations pursuant to [Labor 

Code] Section 98.7.” (Lab. Code, §§ 230, subd. (h)(1); 230.1, subd. (d)(1).) At least one 

federal district court has recognized a private right of action under Labor Code 

section 230. (Gutierrez v. RWD Technologies, Inc. (E.D. Cal. 2003) 279 F.Supp.2d 1223, 

1226-1227.)

We express no opinion on this issue because (1) Rosales also asserts a 

claim for wrongful termination in violation of the public policy expressed in Labor Code 

section 230.1 (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176 

[authorizing common law tort action for wrongful termination in violation of 

fundamental public policy established by statute]); and (2) we conclude the trial court 

properly granted Moneytree summary judgment on Rosales’s claims. 
10

Because direct evidence of employment discrimination is rare, California 

courts have adopted the three-stage burden-shifting test established by the United States 

Supreme Court for evaluating circumstantial evidence in employment discrimination 

cases. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri); 

Morgan, supra, 88 Cal.App.4th at p. 68.) “‘[Through] successive steps of increasingly 

narrow focus, the [so-called McDonnell Douglas] test allows discrimination to be 

inferred from facts that create a reasonable likelihood of bias and are not satisfactorily 

explained.’” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 (Wills).)

“At trial, under the first step of the McDonnell Douglas framework, the 

plaintiff may raise a presumption of discrimination by presenting a ‘prima facie case,’ the 

components of which vary depending upon the nature of the claim . . . . ‘A satisfactory 

showing to this effect gives rise to a presumption of discrimination which, if unanswered 

by the employer, is mandatory—it requires judgment for the plaintiff.’” (Serri, supra, 

226 Cal.App.4th at p. 860.) The burden then shifts to the employer defendant to 

articulate a legitimate, nondiscriminatory reason for its employment decision. (Swanson 

v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 965 (Swanson); Wills, 

supra, 195 Cal.App.4th at p. 160.) If the employer does so, “the presumption of 

discrimination created by the prima facie case ‘“simply drops out of the picture”’

[citations] and the burden shifts back to the employee to prove intentional 

discrimination.” (Morgan, supra, 88 Cal.App.4th at p. 68.) In the final stage, the 

plaintiff employee must prove discrimination by presenting evidence to show the 

employer’s proffered reasons are a pretext for discrimination or the employer otherwise 

acted with a discriminatory motive. (Serri, at p. 861; Swanson, at p. 965.)

As explained above, the McDonnell Douglas framework was developed for 

use in establishing intentional discrimination at trial. But we must alter the sequential 

framework on a summary judgment motion because summary judgment law places the 

initial burden on a moving party defendant to show the plaintiff’s claim lacks merit by 
11

either negating an essential element of the claim or establishing a complete defense to the 

claim. (Serri, supra, 226 Cal.App.4th at p. 861; Swanson, supra, 232 Cal.App.4th at 

pp. 965-966.) Thus, when an employer defendant seeks summary judgment on a 

discrimination claim, the employer “‘has the initial burden to present admissible evidence 

showing either that one or more elements of plaintiff’s prima facie case is lacking or that 

the adverse employment action was based upon legitimate, nondiscriminatory factors.’” 

(Serri, at p. 861; Swanson, at p. 966.)

“If the employer meets its initial burden, the burden shifts to the employee 

to ‘demonstrate a triable issue by producing substantial evidence that the employer’s 

stated reasons were untrue or pretextual, or that the employer acted with a discriminatory 

animus, such that a reasonable trier of fact could conclude that the employer engaged in 

intentional discrimination or other unlawful action.’” (Serri, supra, 226 Cal.App.4th at 

p. 861.) “‘An employee in this situation can not “simply show the employer’s decision 

was wrong, mistaken, or unwise. Rather, the employee ‘“must demonstrate such 

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the 

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer 

did not act for the [. . . asserted] non-discriminatory reasons.’”’”’” (Batarse v. Service 

Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 834 (Batarse).) 

In this context, the Supreme Court has emphasized that “‘an employer is 

entitled to summary judgment if, considering the employer’s innocent explanation for its 

actions, the evidence as a whole is insufficient to permit a rational inference that the 

employer’s actual motive was discriminatory.’ [Citation.] It is not sufficient for an 

employee to make a bare prima facie showing or to simply deny the credibility of the 

employer’s witnesses or to speculate as to discriminatory motive. [Citations.] Rather it 

is incumbent upon the employee to produce ‘substantial responsive evidence’

demonstrating the existence of a material triable controversy as to pretext or 
12

discriminatory animus on the part of the employer.” (Serri, supra, 226 Cal.App.4th at 

pp. 861-862.)

“We review the trial court’s decision to grant summary judgment de novo. 

We are not bound by the trial court’s stated rationale, but independently determine 

whether the record supports the trial court’s conclusion that the plaintiff’s discrimination 

claim failed as a matter of law.” (Wills, supra, 195 Cal.App.4th at p. 161.)

C. Moneytree Met Its Initial Summary Judgment Burden by Establishing a Legitimate 

Nondiscriminatory Reason for Terminating Rosales

Moneytree sought summary judgment on Rosales’s claims for wrongful 

termination in violation of Labor Code section 230.1 and the fundamental public policy

expressed in that statute. According to Moneytree, it met its initial burden by presenting 

evidence it had a legitimate nondiscriminatory reason for terminating Rosales’s 

employment. We agree.

“‘[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily 

have been wise or correct. [Citations.] While the objective soundness of an employer’s 

proffered reasons supports their credibility . . . , the ultimate issue is simply whether the 

employer acted with a motive to discriminate illegally. Thus, “legitimate” reasons 

[citation] in this context are reasons that are facially unrelated to prohibited bias, and 

which, if true, would thus preclude a finding of discrimination.’” (Serri, supra, 

226 Cal.App.4th at p. 861, italics omitted.)

Moneytree contends it terminated Rosales because its investigation into the 

missing bus passes lead it to conclude an employee stole the passes, Rosales gave 

untruthful and incomplete answers during her interview regarding the missing passes, and 

she was the employee who most likely stole the passes. To support this contention

Moneytree presented deposition testimony from its district manager and others about 

Rosales’s employment, the investigation, and the decision to terminate Rosales. 

Moneytree also relied on the termination notice it gave Rosales, which explained
13

Moneytree had concluded she gave untruthful and incomplete answers during the 

investigative interview and she had stolen the passes.

This evidence satisfied Moneytree’s initial summary judgment burden on 

both of Rosales’s causes of action because it shows Moneytree terminated Rosales for a 

reason unrelated to her domestic violence leaves. On the Labor Code section 230.1 

claim, Moneytree’s stated reason negates the essential element that Moneytree fired 

Rosales for taking time off to address domestic violence issues. (Lab. Code, § 230.1, 

subd. (a); see Deschene, supra, 76 Cal.App.4th at pp. 41-42.) Similarly, this evidence 

negates an essential element of Rosales’s claim for wrongful termination in violation of 

public policy, a claim dependent upon Rosales establishing a violation of Labor Code 

section 230.1. Rosales does not dispute that Moneytree satisfied its initial burden, and 

therefore the burden shifted to her to establish a triable issue of material fact.

D. Rosales Failed to Establish a Triable Issue of Material Fact

Rosales contends she created a triable issue of fact in two ways. First, she 

contends she presented direct evidence that her supervisors harbored discriminatory 

animus toward her. Second, she contends she presented circumstantial evidence showing 

Moneytree’s stated reason for terminating her was a pretext for discrimination. We 

address each of these contentions separately.

1. Rosales Did Not Present Direct Evidence of Unlawful Discrimination 

Rosales contends a statement by Candido, her district manager, and two 

statements by Hernandez, her branch manager, directly prove they harbored “animus 

toward her based on her repeated need for domestic violence leave.” We disagree these

statements are direct evidence of discriminatory animus establishing a triable issue of 

fact.

As explained above, an employment discrimination claim may be 

established through direct or circumstantial evidence, or both. (Mokler, supra, 
14

157 Cal.App.4th at p. 138; see DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 

549 (DeJung).) The McDonnell Douglas burden-shifting framework applies only to 

claims based on circumstantial evidence. The courts developed that framework to allow 

plaintiffs to prove unlawful discrimination through circumstantial evidence and inference 

when direct evidence is unavailable. But that framework is unnecessary when the 

plaintiff relies on direct evidence. (DeJung, at p. 550; Mokler, at p. 138; Trop v. Sony 

Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144-1145 (Trop).) Thus, 

when an employee seeks to rely on direct evidence, the question is simply whether the 

employee’s evidence is sufficient to create a triable issue on whether the employer acted 

with discriminatory animus.

“‘Direct evidence is evidence which proves a fact without inference or 

presumption.” (Trop, supra, 129 Cal.App.4th at p. 1145; see DeJung, supra, 

169 Cal.App.4th at p. 550.) “Direct evidence of retaliation [or discrimination] may 

consist of remarks made by decisionmakers displaying a retaliatory [or discriminatory] 

motive.’” (Colarossi v. Coty US, Inc. (2002) 97 Cal.App.4th 1142, 1153 (Colarossi).) 

“Comments demonstrating discriminatory animus may be found to be direct evidence if 

there is evidence of a causal relationship between the comments and the adverse job 

action at issue.” (DeJung, at p. 550.) Similarly, “Direct evidence may take the form of 

admissions by a decision maker that the adverse employment action was taken because of 

the employee’s membership in the protected class.” (Batarse, supra, 209 Cal.App.4th at 

pp. 834-835.)

For example, in DeJung, numerous comments by the chair of a hiring 

committee that “they want[ed] somebody younger, maybe in their 40’s’” constituted

direct evidence sufficient to defeat a summary judgment motion on an age discrimination 

claim because the comments, made during the hiring process, showed discriminatory 

animus against older applicants without the need for an inference or presumption. 

(DeJung, supra, 169 Cal.App.4th at p. 550.)
15

In contrast, Trop involved a summary judgment motion on a pregnancy 

discrimination claim where the plaintiff’s boss stated that plaintiff should not have any 

children while she worked for the boss did not amount to direct evidence of 

discriminatory animus because the isolated comment was not contemporaneous with the 

discharge or causally related to the company’s decision to terminate plaintiff. (Trop, 

supra, 129 Cal.App.4th at pp. 1147-1149.) At a company Christmas party, the plaintiff 

was playing with another employee’s infant and said, “‘It looks like I get to have one of 

my own,’” and the plaintiff’s boss responded, “‘Not while you are working for me.’” (Id. 

at pp. 1140, 1148.) A little more than a month later, the boss terminated the plaintiff’s 

employment based on her job performance, explaining the plaintiff had lost messages, 

lacked interest in work, and put through a phone call at an inopportune time. When the 

plaintiff sued for pregnancy discrimination, the employer produced evidence in its 

summary judgment motion it terminated the plaintiff for the legitimate and 

nondiscriminatory reason she performed her job poorly. (Id. at pp. 1142-1143.)

In upholding the trial court’s decision granting the employer summary 

judgment, the Trop court rejected the plaintiff’s contention that her boss’s comment at the 

Christmas party was direct evidence of discriminatory animus. The court explained the 

boss made her ambiguous statement more than a month before deciding to terminate the 

plaintiff, and the plaintiff presented no evidence establishing a causal relationship 

between the comment and her termination for poor job performance. (Trop, supra, 

129 Cal.App.4th at pp. 1148-1149.) 

Here, Rosales first points to a discussion she had with Candido after she 

took leave to attend a court hearing regarding her boyfriend in June 2011. During this 

conversation, Candido asked Rosales a few questions about the court appearance and her 

situation with her boyfriend to determine whether Candido could code the missed time as 

domestic violence leave, which she did. Rosales does not identify any statement Candido 

made during this conversation as direct evidence of discriminatory animus. Instead, 
16

Rosales points to a statement Candido made two years later when Rosales’s counsel

deposed her about the conversation. From that testimony, Rosales points to Candido’s 

statement that she “felt very strongly [Rosales] was . . . not really trying to separate 

herself from the domestic violence at that time” because she appeared at the court hearing 

to testify her boyfriend needed anger management help, not jail time.

Next, Rosales contends Hernandez’s response to a hypothetical question 

Rosales’s counsel asked during Hernandez’s deposition directly proves his discriminatory 

animus. In response to counsel’s question why he would not want employees showing up 

at work with visible bruises, Hernandez simply responded, “It gives the wrong image.” 

Finally, Rosales contends comments Hernandez made to her after she 

returned from her five-day leave directly prove his discriminatory animus. She points to 

Hernandez’s statements that “you can’t be doing this. You need to move on with your 

life.” And also comments that Rosales “can do better” and she’s “too good for that.” At 

her deposition, Rosales conceded Hernandez was trying to be supportive when he made 

these comments, but they nonetheless hurt her feelings because he did not understand the 

situation. 

Each of these statements simply voices general observations or concerns for 

Rosales’s well-being. None of them amount to direct evidence of discriminatory animus 

because they do not reflect a desire or motive to take any adverse employment action 

against Rosales without drawing significant inferences from the statements and 

considering additional evidence. The statements alone do not display a retaliatory motive 

(Colarossi, supra, 97 Cal.App.4th at p. 1153), they are not admissions (Batarse, supra, 

209 Cal.App.4th at pp. 834-835), and they were not made contemporaneously with the 

decision to terminate Rosales and are not causally related to that decision (DeJung, 

supra, 169 Cal.App.4th at p. 550; Trop, supra, 129 Cal.App.4th at pp. 1148-1149). 

In short, nothing in the statements connects them to Moneytree’s decision 

to terminate Rosales for being untruthful and stealing the bus passes. Giving Rosales 
17

every benefit of the doubt (see Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 

1098 [opposing party’s evidence is liberally construed on summary judgment]), the 

statements at most reflect a general concern or disapproval of her failure to remove 

herself from an abusive relationship. They do not threaten termination or any other

adverse employment action for Rosales’s failure to terminate the relationship or for 

taking domestic violence leave. In her reply, Rosales concedes these statements do not 

directly establish a discriminatory animus, but rather require a fact finder to infer animus 

from the statements and other evidence. As explained above, direct evidence is evidence 

that proves a fact without inference or presumption. (Trop, supra, 129 Cal.App.4th at 

p. 1145; see DeJung, supra, 169 Cal.App.4th at p. 550.) Accordingly, the statements are 

not direct evidence of discriminatory animus sufficient to defeat Moneytree’s motion.2

Rosales contends Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297

(Sandell), supports her contention that Candido’s and Hernandez’s statements are direct 

evidence of discriminatory intent. We disagree. In Sandell, the plaintiff took several 

months off work to recover from a stroke. (Id. at p. 303.) When he returned to work, the 

plaintiff used a cane and spoke much slower than he did before his stroke because he 

experienced difficulties with his balance and speech. Shortly after his return, the 

plaintiff’s boss told him, “if [he] didn’t make a full recovery, that the company had the 

right to fire [him] or demote [him] and reduce [his] salary.” The boss also asked the 

plaintiff “when [he] was going to get rid of the cane and when [he] was going to drop the 

dramatization.” (Id., at p. 304.) When the boss later terminated the plaintiff, he sued for 

 

2

In her reply, Rosales points to a second statement by Candido as direct 

evidence of discriminatory animus. Specifically, she identifies an e-mail Candido sent to 

her supervisor after Rosales returned from her five-day domestic violence leave in 

August 2011. In the e-mail, Candido told her supervisor she explained to Rosales that 

“future missed time could effect [sic] her attendance record.” Even this statement is not 

direct evidence of discriminatory animus because there is no causal relationship between 

the statement and Moneytree’s decision to terminate Rosales for dishonesty and theft.
18

disability discrimination and pointed to these statements as direct evidence of the boss’s 

discriminatory animus. The Sandell court accepted the first statement as direct evidence 

because it showed the boss’s willingness to terminate the plaintiff because he had not 

fully recovered from the stroke. The Sandell court also accepted the second, when 

combined with the first, because it supported the inference the plaintiff was not 

recovering fast enough for the boss’s liking. (Id. at pp. 319-320.)

None of the statements Rosales points to in this case rise to the level of the 

statements at issue in Sandell. Indeed, neither Candido nor Hernandez threatened to 

terminate Rosales nor did they complain about her taking leave. Moreover, the Sandell

court did not conclude that the foregoing statements alone were sufficient to establish 

discriminatory animus. Rather, the Sandell court simply explained they should be 

considered “in the mix of evidence.” (Sandell, supra, 188 Cal.App.4th at p. 320.) Earlier 

in the opinion, the Sandell court decided that other evidence the plaintiff presented 

challenging the credibility of the employer’s purported legitimate, nondiscriminatory 

reason established a triable issue sufficient to defeat summary judgment. (Id. at p. 319.)

Because we conclude the statements Rosales identifies are not direct 

evidence of discriminatory animus, we do not address her further contentions concerning 

(1) whether Candido’s and Hernandez’s statements may establish Moneytree acted with 

discriminatory animus even though they did not make the final decision to terminate 

Rosales, and (2) the quantum of direct evidence necessary to defeat summary judgment.

2. Rosales’s Evidence Does Not Create a Triable Issue on Pretext

Rosales also contends she established a triable issue under the McDonnell 

Douglas framework by presenting circumstantial evidence showing Moneytree’s stated 

reason for terminating her was a pretext for unlawful discrimination based on her 

repeated domestic violence leaves. As evidence of pretext, Rosales points to (1) the 

comments by Candido and Hernandez allegedly showing they harbored a discriminatory 
19

animus against her; (2) the temporal proximity between Rosales’s five-day domestic 

violence leave and her termination; and (3) alleged inadequacies in the missing bus pass 

investigation that lead to Rosales’s termination. We conclude Rosales’s evidence does 

not constitute substantial evidence of pretext sufficient to defeat Moneytree’s motion.

To create a triable issue Rosales must produce substantial evidence that 

Moneytree’s stated reason for terminating her was untrue or pretextual, or that Moneytree 

acted with a discriminatory animus, such that a reasonable trier of fact could conclude 

Moneytree engaged in intentional discrimination. (Serri, supra, 226 Cal.App.4th at 

p. 861.) “‘[E]vidence that the employer’s claimed reason [for the employee’s 

termination] is false—such as that it conflicts with other evidence, or appears to have 

been contrived after the fact—will tend to suggest that the employer seeks to conceal the 

real reason for its actions, and this in turn may support an inference that the real reason 

was unlawful.’” (Id. at p. 863.)

But, “there must be more than inconsistent justifications for an employee’s 

termination to support an inference that the employer’s true motivation was 

discriminatory. . . . ‘. . . Proof that the employer’s proffered reasons are unworthy of 

credence may “considerably assist” a circumstantial case of discrimination, because it 

suggests the employer had cause to hide its true reasons. [Citation.] Still, there must be 

evidence supporting a rational inference that intentional discrimination, on grounds 

prohibited by the statute, was the true cause of the employer’s actions.’” (McGrory v. 

Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1531 (McGrory).) 

“Logically, disbelief of an Employer’s stated reason for a termination gives rise to a 

compelling inference that the Employer had a different, unstated motivation, but it does 

not, without more, reasonably give rise to an inference that the motivation was a 

prohibited one.” (Id. at pp. 1531-1532.) When evaluating an employee’s evidence of 

pretext, the court must consider the totality of all the evidence, not each item in isolation. 

(Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541 (Reid).)
20

As explained above, we conclude the identified statements by Candido and 

Hernandez are not direct evidence of discriminatory animus. That conclusion, however, 

does not prevent those same statements from serving as circumstantial evidence to 

support Rosales’s discrimination claim. (Reid, supra, 50 Cal.4th at pp. 541-542.) 

Rosales contends these statements showed Candido and Hernandez harbored 

discriminatory animus because they were responsible for collecting and presenting the

information on which Moneytree based that decision. 

Candido’s and Hernandez’s statements, however, are little more than vague 

generalities and broad concerns for Rosales’s well-being. Nothing in the statements or 

their timing hints at a desire to terminate Rosales based her domestic violence leaves or 

otherwise suggests Moneytree’s stated reason for terminating Rosales was false. At best, 

these statements suggest “only a weak suspicion that discrimination was a basis for 

[Rosales’s] termination”; alone they do not establish Moneytree acted with 

discriminatory animus or that its stated reason for terminating Rosales was a pretext for 

discrimination. (See Serri, supra, 226 Cal.App.4th at pp. 867-868.) Simply put, 

suspicion is not evidence.

Similarly, the three-week temporal proximity between Rosales’s five-day 

domestic violence leave and her termination fails to establish pretext. California courts 

have repeatedly held that temporal proximity may be sufficient to establish a prima facie 

case in the first stage of the McDonnell Douglas framework, “[b]ut temporal proximity 

alone is not sufficient to raise a triable issue as to pretext once the employer has offered 

evidence of a legitimate, nondiscriminatory reason for the termination.” (Arteaga v. 

Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353; see Loggins v. Kaiser Permanente Intern.

(2007) 151 Cal.App.4th 1102, 1112-1113 (Loggins).) Temporal proximity is one factor,

but additional substantial evidence is required to establish pretext. (Loggins, at p. 1113.) 

The evidence Rosales cites fails to establish deficiencies in Moneytree’s 

bus pass investigation and therefore is not evidence of pretext or discriminatory animus. 
21

First, Rosales claims the investigation was inadequate because Candido lead the 

investigation despite her discriminatory animus against Rosales, but, as explained above, 

Candido’s isolated comments do not establish discriminatory animus against Rosales and 

therefore do not undermine the integrity of the investigation. 

Next, Rosales challenges the adequacy of the investigation because

Candido had no training in conducting investigations into employee misconduct and 

“waited a full year before papering the record with the results of her investigation.” The 

testimony Rosales cites supports neither of these contentions. Candido testified she had 

no “formal training” in conducting investigations, but she also testified (1) her job 

provided “ongoing, as-you-go training” and this was not her first investigation; (2) she 

constantly discussed ongoing investigations with her supervisor, who told her who to 

interview, how to interview each person, and what to look for until the supervisor was 

convinced all available information was obtained; and (3) she participated in bi-weekly 

district manager conference calls that included discussions about investigations and 

activities at other branches. Similarly, although Candido acknowledged the formal 

written report on her investigation was prepared a year after Moneytree terminated 

Rosales, she also testified she had prepared an investigation report at the time Rosales 

was terminated and the final report was just a formalized version of the original report. 

Rosales also faults the investigation for failing to conclusively determine 

who took the bus passes, but the law does not require Moneytree to have irrefutable proof

Rosales was untruthful and stole the passes. Rosales was an at-will employee “subject to 

termination . . . for no reason or almost any reason [citation], except for a reason that 

violates a fundamental public policy recognized in a constitutional or statutory 

provision.” (McGrory, supra, 212 Cal.App.4th at p. 1514; see Trop, supra, 

129 Cal.App.4th p. 1149.) In discrimination cases such as this, the issue is not the 

objective truth or falsity of Moneytree’s stated reason for terminating Rosales, but 

whether Moneytree honestly believed Rosales was untruthful and took the passes. (Wills, 
22

supra, 195 Cal.App.4th at p. 170.) Indeed, the factual dispute at issue is whether 

discriminatory animus motivated Moneytree, not whether Moneytree was wise, shrewd, 

prudent, or even competent in conducting its investigation and reaching its conclusions. 

(Id. at p. 160.) Accordingly, the purported lack of a conclusive determination regarding 

who took the bus passes does not undermine the investigation or establish pretext because 

Rosales fails to cite any evidence showing Moneytree did not honestly believe Rosales 

lied and stole the passes.

Finally, Rosales argues the investigation was inadequate because 

Moneytree failed to “closely scrutinize” another vault teller who Rosales contends 

worked the shift immediately before the theft was discovered and had a stronger motive 

to take the passes because her boyfriend allegedly rode the bus. The record, however, 

reveals that Candido interviewed every vault teller and employee who had access to the 

vault where the passes were kept. Based on each employee’s response while interviewed

and other information, including which shifts each vault teller worked in the days leading 

up to the theft, the sequencing of those shifts, and when the theft occurred, Moneytree 

concluded Rosales was untruthful and took the passes. The record therefore reveals 

Moneytree gave all vault tellers equal consideration in its investigation and Rosales’s 

contention Moneytree should have more closely scrutinized another teller is not evidence 

of pretext.

Accordingly, the evidence Rosales presented about Moneytree’s 

investigation is not evidence of pretext and Rosales is left with only (1) the isolated 

statements by Candido and Hernandez, which at most give rise to a weak suspicion of 

discrimination (see Serri, supra, 226 Cal.App.4th at pp. 867-868), and (2) the temporal 

proximity of Rosales’s final leave and her termination, which requires substantial 

additional evidence to establish pretext (Loggins, supra, 151 Cal.App.4th at p. 1113). 

When considered together, that evidence does not amount to the type of substantial 

evidence required to create a triable issue on pretext or discriminatory animus. (See 
23

Serri, at p. 862.) Rosales simply fails to produce any substantial evidence showing 

Moneytree did not terminate her for being untruthful and taking the bus passes.3

III

DISPOSITION

The judgment is affirmed. Moneytree shall recover its costs on appeal.

ARONSON, J.

WE CONCUR:

MOORE, ACTING P. J.

THOMPSON, J.

 

3 Because we conclude Moneytree met is burden to establish it terminated 

Rosales for a legitimate nondiscriminatory reason and Rosales failed to establish a triable 

issue of material fact on pretext or discriminatory animus, we do not consider 

Moneytree’s additional argument that the trial court ruling could be upheld based on the 

after-acquired evidence that Rosales lied on her job application.